Someone recently bought our

students are currently browsing our notes.

X

An Unjust Law Is Not A Law To A Significant Extent Notes

Law Notes > Legal Foundations (LAWS110) Notes

This is an extract of our An Unjust Law Is Not A Law To A Significant Extent document, which we sell as part of our Legal Foundations (LAWS110) Notes collection written by the top tier of University Of Canterbury, Christchurch students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Legal Foundations (LAWS110) Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

An unjust law is not a law to a significant extent. This is clear by determining that within the essence of law is a moral obligation that legitimises the law.
A morally unjust law is not a law because morality and law are interconnected and when morals are absent in the law then it ceases to be a valid law. As natural law-theorists like
Fuller believe there is "reciprocal relationship" between law and morals so that morals legitimise a law.1 Thus, legal validity is a "species" of moral validity and legal obligation does not exist without moral obligation.2 Therefore, an immoral law is not a law because it lacks a moral authority which is at the essence of law.3 This is overlooked by legal positivists like
Hart who believe that morals and the law are not connected.4 However, this is an insular viewpoint that oversimplifies the concept of law by ignoring the moral aspect of law which is vital for the legitimacy and function of law. Significantly, without this moral legitimacy law is seen as a rule exerted by the powerful.5 Essentially, the law is not simply a form of "naked power" but instead it is a law of moral authority and moral obligation rather than through coercion.6 Thus, the law must have a degree of moral legitimacy.
An unjust law is not a law because it does not fulfil the moral function of law. The function of law is to morally regulate society's behaviour and that there should be a just order in society formed by morally legitimate laws. According to Fuller, the function of law is not just to create order, but it is to create a morally just order which is overlooked by positivists. 7
Fuller believes that law provides a "stable framework" that should be based on the "inner morality of law."8 This means that if a society does not see law as morally legitimate with a sense of consistency, impartiality and equality as a Rule of Law then law loses its moral authority from a sense of procedural morality because it does not create a fair legal order. 9
In addition, laws are unjust when they do not fulfil a moral obligation to create a just order in society. Furthermore, there is an element of substantive morality for a law to be deemed morally legitimate that focuses on human rights and the fairness of outcomes to create a morally just order. Although this is not a Fullerian principle this is still a natural-law theory.10
For example, the law cannot legitimately be used to justify human crimes like those of Nazi
Germany due to substantive morality. These concepts underpin the natural law-theory of how a law is legitimised through not only its moral legitimacy from a procedural morality sense but also through laws moral obligation to create order and its accordance with human rights from a substantive moral sense.
In conclusion, a morally unjust law is not a law because law requires a degree of moral legitimacy and it must fulfil its moral obligation and function to create a just order in the legal system and in society.

1 Adams and Brownsword, Understanding the Law (2nd edition), Sweet and Maxwell, 1991, Chapter One, 19
Adams and Brownsword, Understanding the Law (2nd edition), Sweet and Maxwell, 1991, Chapter One, 19 3
Adams and Brownsword, Understanding the Law (2nd edition), Sweet and Maxwell, 1991, Chapter One, 16 4
Adams and Brownsword, Understanding the Law (2nd edition), Sweet and Maxwell, 1991, Chapter One, 19 5
Adams and Brownsword, Understanding the Law (2nd edition), Sweet and Maxwell, 1991, Chapter One, 16 6
Adams and Brownsword, Understanding the Law (2nd edition), Sweet and Maxwell, 1991, Chapter One, 17 7
Adams and Brownsword, Understanding the Law (2nd edition), Sweet and Maxwell, 1991, Chapter One, 19 8
Adams and Brownsword, Understanding the Law (2nd edition), Sweet and Maxwell, 1991, Chapter One, 18 9
Ruru, Scott and Webb The New Zealand Legal System (6th edition), Lexis-Nexis, 2016, Chapter One 10
Adams and Brownsword, Understanding the Law (2nd edition), Sweet and Maxwell, 1991, Chapter One, 17 2

Buy the full version of these notes or essay plans and more in our Legal Foundations (LAWS110) Notes.